Dr. Md. Nurul Amin: As per the constitution, Bangladesh gears up for its 12th national parliamentary election on 7 January 2024, the political landscape is rife with complexities and concerns. The rivalry between the ruling Awami League and the opposition, particularly the Bangladesh Nationalist Party (BNP), adds layers of tension to the electoral process. Is this election held under the constitution or not under the constitution? Examining the situation through the lens of the constitution raises critical questions about the fairness, participation, and acceptability of the upcoming elections.  This article explores the changing political situation, focusing on topics like the arrest of opposition leaders, reported breaches of electoral rules, and the difficulties faced by affected families. By looking at both past events and what’s happening now, I would like to uncover the difficulties that could influence Bangladesh’s elections and affect its commitment to democracy.

Activity of the ruling party – constitutional or unconstitutional?

Just like in other democratic countries, as per the Bangladesh constitution, participating in a peaceful rally is not considered illegal. The Bangladesh National Party, BNP, held a lawful rally, demanding a fair election in the upcoming parliament election explicitly stating their non-violent intentions, while the Awami regime falsely accused and provoked them through the mainstream media.  The Awami regime organized its own rally on October 28, calling it a ‘peace rally,’ but encouraged supporters to come armed with ‘Logi-Boitha,’ reminiscent of past violent actions during the BNP’s 2001–2006 tenure. On 28 October 2006, people were violently beaten to death with bamboo sticks by Awami League’s supporters, following Sheikh Hasina’s call for her supporters to bring the bamboo sticks (Logi-Boitha, see the link for detail in wikipedia <https://en.wikipedia.org/wiki/Logi_Boitha_Movement> ) (Ref: 12 killed in Bangladesh clashes, Al Jazeera, 28 Oct 2006). Currently, the Awami League’s  general secretary threatened the BNP, referencing the 2013 Hefazat massacre (Ref:Video suggests higher Bangladesh protest toll Al Jazeera, 14 May 2013;

HRW, Blood on the Streets, 1 August 2013, <https://www.hrw.org/report/2013/08/01/blood-streets/use-excessive-force-during-bangladesh-protests >), hinting at similar actions if the alleged redline was crossed on October 28,  2023. To stop the rally in Dhaka on October 28, 2023, the police checked all incoming buses for BNP supporters. They even inspected personal belongings like bags, mobile phones, and IDs to identify supporters. A year earlier, 10 December 2022, during another BNP rally, both the police and Awami League’s supporters checked people’s mobile phones to know their political views, sometimes resorting to assault. In recent large rallies, the police checked all residential hotels in Dhaka for BNP supporters and searched civilian houses. This situation poses a serious threat to the privacy and independence of ordinary citizens in Bangladesh, with seemingly no one to help them. This also indicates that not supporting the ruling party is treated as illegal but it is not and should not be. After October 28, the police consistently arrested BNP leaders and supporters, with many facing false criminal charges. The prison population in Bangladesh, including those with false charges against opposition supporters, has nearly doubled, even tripled in some districts. Awami League and its supporters assist the police in identifying opposition party supporters, as if it is illegal to support the BNP but not constitutionally. If we claim that BNP supporters were engaged in criminal activity, the police have the authority to arrest them. However, Awami supporters do not possess any constitutional or legal rights to arrest civilians. It is important to note that police arrests can also be politically motivated as practices in Bangladesh. When the person is not found, police sometimes arrest, torture, or detain other family members, like sons, brothers, or fathers, or Awami supporters break their house and loot belongings. This behavior blatantly violates the constitution, restricting people’s freedom to support any party and their freedom of speech, which is being heavily suppressed by the ruling party. Families of arrested opposition leaders face hardship as their main providers are in jail (Arrest of lone earners leaves families in misery, New Age, 3 December, 2023).  According to human rights watch, around 10,000 opposition supporters were arrested following a planned rally by the main opposition Bangladesh Nationalist Party (BNP) on October 28. Ongoing violence has resulted in at least 16 deaths, including 2 police officers, and over 5,500 injuries (HRW, 21 November 2023, link <https://www.hrw.org/news/2023/11/26/bangladesh-violent-autocratic-crackdown-ahead-elections> ) and also see in the Guardian, (link <https://www.theguardian.com/world/2023/nov/10/bangladesh-opposition-crackdown-election-sheikh-hasina-awami-league-bnp>). Human Rights Watch has gathered evidence, including interviews, videos, and police reports, indicating that security forces are responsible for excessive force, mass arrests, disappearances, torture, and extrajudicial killings in recent election-related violence. There are disturbing signs of coordination between the police and Awami League supporters in targeting opposition activists, causing fear among the public. A video from November 4, 2023  in Dhaka showed Awami League activists with police, chanting threatening slogans “capture the activists of BNP one by one and slaughter them,”  and carrying wooden batons to threaten BNP’s supporters not to come out. Even the General Secretary of the Awami League, Obaidul Quader, mentioned that supporters of the BNP should either hide in caves or be prepared to go to jail. This goes against the constitution completely. When BNP supporters get arrested merely for participating in any non-violent political campaign, while Awami League supporters, despite carrying weapons, using threatening language, and inciting violence, do not face arrests, is it in line with the constitution?

Even though the ruling party is involved in suppressing the opposition party, especially the BNP, violating civilian law of the country, they constantly say that elections will be held under the constitution. But what is the constitution? Why is it questionable? Historical evidence shows that elections in Bangladesh under political governments have never been truly free, fair, and participatory. A non-political interim government has been proven to be a solution, ensuring more fairness and acceptance by citizens and international stakeholders. Elections under such caretaker governments have historically been more just like a “tool of changing regime”. So, it means an election under a non-political interim government might be a chance for the BNP or any other party to take power. On the other hand, the ruling party, particularly the Awami League, fears losing power, as past elections under caretaker governments provided opportunities for different parties. If the demand for a caretaker government, voiced by BNP and other parties, is accepted, the Awami League might lose power, and they want to avoid that at all costs. They fear repercussions, similar to what happened to BNP leader Khaleda Zia, who is now in jail facing seemingly politically motivated charges. Khaleda Zia’s son, Tareq Zia, had to seek political asylum in the UK since the government denied him a passport to return. Out of this apprehension, the Awami League is opposing the idea of a caretaker, interim, or any non-political government for a free, fair, and participatory election.

Unveiling Constitution for parliamentary election

The ruling party, Awami League, insists on conducting the election under the current conditions, with their active involvement. On the other hand, BNP demands a non-political interim government. When we look at the Awami League’s position, it’s interesting to note that the party itself initially advocated for a non-party caretaker government during the BNP’s term from 1991 to 1996. The Awami League, along with allies like Bangladesh Jamaat-e-Islami and the Jatiya Party, compelled the BNP to adopt the caretaker government system after a prolonged general strike and negotiations with international mediators. The Awami League’s motivation stemmed from dissatisfaction with the 1991 election results, attributing them to “subtle rigging.” They believed amending the constitution to establish a non-party caretaker government was necessary for ensuring fair elections. Sheikh Hasina, the Awami League leader, even expressed a desire for the caretaker government system to remain indefinitely. The call for the caretaker government system gained traction after the alleged rigging of the Magura by-election in 1994, where the BNP was accused of manipulation with the assistance of civil bureaucracy and law enforcement agencies. The Awami League and its allies argued that the neutrality of these institutions was crucial for holding free and fair elections, even though they were not biased towards the BNP at that time. However, during the Janatar Mancha movement in 1996, it was revealed that the civil administration was more politicized in favor of the Awami League than the ruling BNP. Despite this, the BNP conducted the February 1996 election under the constitution, securing a significant majority of 278 seats, as the Awami League boycotted the election. The BNP then used its parliamentary majority to pass the 13th amendment, just after a month and dismissed the parliament, paving the way for Bangladesh’s first national election under the caretaker government system in June 1996. Although the BNP narrowly lost the election (118-146), the difference in actual votes between the BNP and the Awami League was marginal, highlighting the potential of the caretaker government system to facilitate a free and fair election.

During the Awami League regime from 1996 to 2001, the Awami League did not change the law regarding the caretaker government. The election held under the caretaker government in 2001 resulted in Awami League losing power, and BNP returned to rule. According to the provision, the last retired justice would be the chief of the caretaker government. When BNP’s term came to an end, it was time for the interim government to take over. However, the Awami League opposed the formation of a new caretaker government, claiming that the retired chief justice was not neutral and was politically influenced by the BNP. The Awami League alleged that BNP intentionally extended his tenure so that he could retire just before forming the caretaker government. After this crisis, a military-backed interim government declared a state of emergency in the country and postponed the election indefinitely. However, the Awami League had different intentions for the caretaker government system, as disclosed in Pranab Mukherjee’s autobiography, “The Coalition Years,” published in 2017. Mukherjee, who served as India’s influential Finance Minister during Bangladesh’s emergency government led by Mainuddin-Fakhruddin, shared a conversation with General Mainuddin, expressing the latter’s concerns about his future if Sheikh Hasina came to power after the December 2008 election. Mukherjee assured him of his personal responsibility for his survival once Hasina returned to power. The meeting between Mukherjee and General Mainuddin presented an opportunity for the Awami League to achieve its objectives. The general’s control over the 2008 election, including the development of software used during the election, ensured a landslide victory for the Awami League with the coveted two-thirds majority (230 seats against the BNP’s 30). This result enabled the Awami League to implement the BAKSAL vision through the 15th constitutional amendment adopted in June 2011. In 2011, the ruling party made changes to the constitution, removing the provision for a caretaker government. They now claim elections will follow the constitution, but the truth is, the Awami League altered the rules to stay in power indefinitely. The 15th amendment repealed the 13th amendment and the caretaker government system, which had provided all political parties, including the BNP, with the opportunity to win national elections. The 15th amendment is a highly controversial and burning political issue in Bangladesh, as evident in the article, ‘The Legitimacy And Legality of 15th Amendment’ by Badiul Alam Majumdar (Legitimacy and legality of 15th Amendment, The Daily Star, 31 Oct 2013). The amendment abolished the Caretaker Government (CTG) system, leading to demands from the opposition for its revival. The ruling party rejects this, citing constitutional grounds. Majumder questions the legitimacy and legality of the amendment, suggesting it doesn’t reflect the will of the people. Additionally, the unamendable clause in Article 7B raises doubts about its legality. The Constitution, as stated in its Preamble, is meant to represent the will of the people of Bangladesh. Regrettably, the same cannot be said for the Fifteenth Amendment. It fails to capture the consensus of the Committee members, all affiliated with the Awami League or its allies, and appears to be the outcome of one person’s directive—the Prime Minister. Consequently, the legitimacy of the Fifteenth Amendment is highly questionable, and its legality is also cast into doubt. Despite Article 7B rendering a significant portion of our Constitution unamendable, Mahmudul Islam asserts, “No Parliament can bind the successor Parliament” (Constitutional Law of Bangladesh, 3rd Edition, p. 31). If the 15th amendment lacks legitimacy, it means the elections held under this amendment in 2014 and 2018 are illegal. Consequently, two consecutive terms of the Awami League-led government are also deemed illegal. Likewise, all their actions during this tenure are considered illegal and unconstitutional. This holds implications for the upcoming 2024 election as well. The 15th amendment, however, contained a provision that allowed sitting members of parliament to contest in the next election while retaining their seats and privileges. This provision, without annulling the existing parliament, would enable the Awami League and its allies to nominate the overwhelming majority of sitting MPs to contest in all 300 seats, leaving no room for opposition candidates.  This is referred to as a so-called “election under the constitution”.

Examining the Conduct of the ‘Free and Fair’ Election under Sheikh Hasina’s Constitution!

The 15th amendment, along with the politicization of civil bureaucracy and law enforcement agencies during the Awami League’s tenure, made it increasingly difficult for opposition parties to contest elections fairly. In 2014, the major opposition party BNP boycotted the election, refusing to participate in the so-called dramatized election. At least 153 seats in parliament were elected without any opposition candidates, meaning no polling occurred due to the single candidature and the absence of multiple candidates. To form a government, only 151 seats out of 300 were required. Since 153 seats had no candidates other than a single one from the Awami League, the possibility of forming a government was already secured. The election in the remaining 147 seats became less important as it lost its validity. Voters already knew that the Awami League was going to form a government, so going to the polling center for the rest of the 147 seats had no value, and most voters abstained. However, the Awamicised election commission showed a large number of voters at the polling center, declaring an Awami victory. This is sometimes referred to as a government without votes, known as “Bina Voter Sarkar” in Bengali.

Another drama unfolded during the 2018 election. BNP and its major allied parties once again demanded a non-political interim caretaker government to organize a free, fair, and peaceful election, but Awami League denied it. Prime Minister Sheikh Hasina, the leader of Awami League, promised to ensure a free and fair election. She emphasized her identity as the daughter of Sheikh Mujib, the father of the nation, and urged every party to trust her. However, once the election was announced, and major parties participated, the on-ground situation was unfavorable for any political party except the Awami League. In many areas, especially BNP and its allies, they couldn’t organize a free campaign. Awami League supporters openly threatened to prevent BNP from reaching the polling center on election day, warning of potential violence, including torture, injuries, or even death for BNP supporters. On the day of the election, polling agents of BNP and its allies were expelled from the polling centers, and general voters were obstructed on the roads, warned not to go to the polling center. Even those who reached the centers found their votes already stamped by someone else (possibly ghost or dummy voters), prompting them to return home. Some voters encountered army platoons near polling centers but received no assistance when seeking help. Faced with these challenges, BNP and its allies boycotted the election, asserting that it was not fair, and rejecting both the election and its outcomes. BBC reporters  witnessed alleged ballot-stuffing and irregularities the 2018 election, earning it the nickname “midnight election” ( Ref BBC, 30 December 2018, Bangladesh elections: Deadly clashes mar vote,  see link <https://www.bbc.com/news/world-asia-46603113> and  Bangladesh election: Opposition demands new vote, see link <https://www.bbc.com/news/world-asia-46716605> . Shortly before voting commenced, a BBC correspondent noticed fully filled ballot boxes at a polling center in the city of Chittagong. This implies that the ballots had been stamped the night before the election. This 2018’s election is often called the  “Nishi rater vote” in Bengali, which means an election conducted at midnight without the participation of any voters.

After the 2018 election, some parliamentary seats became vacant, leading to by-elections. However, these by-elections were predetermined. In Bogra, a relatively unknown and uneducated YouTuber, Hero Alam, contested against an Awami League candidate. Despite allegations of rigging, Hero Alam claimed he was supposed to win, but the election commission declared a preplanned victory for the Awami candidate. In the Dhaka-17 by-election, Hero Alam contested again, this time against Awami leader Mohammad A. Arafat, a professor at Dhaka University. Hero Alam faced similar challenges and was even brutally tortured, drawing international concern from the United Nations and the USA. Despite these incidents, the Awami League continued to promise free and fair elections. The final test case was the by-election in Lakshmipur-3 just before the end of the government’s tenure. Elected members would not even have had a chance to attend the parliament meeting, but the election was rigged even though there was no strong opposition candidate. Majority of voters did not go to the polling center. A viral video revealed that a former leader of the Bangladesh Chhatra League, the student wing of the governing Awami League, stamped the ‘boat’ symbol on ballot papers openly during a by-election in the Lakshmipur-3 constituency. The 57-second video, which went viral on social media, showed the former BCL leader stamping on 43 ballots. (Prothom Alo: Former BCL Leader stamps 43 ballots in 57-second, video goes viral Staff, 07 Nov 2023, the news link is here <https://en.prothomalo.com/bangladesh/politics/ust05azvdm> ). This highlights the questionable nature of so-called free, fair, and participatory elections under the Awami League and the constitution during its regime.

2024 Election Preparations: Ensuring Constitutional Compliance?

In preparation for the upcoming election, several Awami League candidates, including notable figures like Golam Dastagir Gazi, have already been observed violating the code of conduct. Gazi, the Awami League candidate for Narayanganj-1 Constituency and the current Member of Parliament, along with being the Textiles and Jute Minister, submitted his nomination papers with a motorcade (Violation of code of conduct at the beginning, almost all from Awami League, Prothom Alo,  30 Nov 2023; Shakib breaches code of conduct during first visit to constituency, Prothom Alo, 30 Nov 2023). Gazi’s supporters were seen carrying firearms and local weapons like machetes and knives when approaching to submit the nomination papers (Prothom Alo Bangla Version, আচরণবিধি ভেঙে অস্ত্রধারীসহ শোডাউন দিয়ে পাটমন্ত্রীর মনোনয়নপত্র দাখিল, 30 November 2023). Additionally, Awami League supporters are reportedly collaborating with the police to conduct door-to-door searches to locate and arrest BNP supporters. The police, in some instances, are arresting BNP supporters’ family members, such as fathers, mothers, or even supportive wives, in the absence of the targeted individuals. A notable example is Noory. Her dad supports the opposition political party in Bangladesh. Similar to many others, her father is hiding to avoid trouble from the ruling party thugs and police. The police come and take her mother as a hostage to pressure her father into surrendering. Noory is crying uncontrollably because both parents are absent. Another example is the BNP-police chase in Sunamganj. A little innocent child is crying, saying, “I will go to father, I will go to father.” The video link of this news is here <https://www.youtube.com/watch?v=Ykq39GkTQKc>. Sheikh Hasina’s party is determined to imprison every viable opposition activist to prevent them from participating or opposing the election. They aim for another uncontested election, similar to the two previous ones.  There have also been reports of people wearing masks and arriving with motorcades or unregistered (no visible registration plate) cars attacking BNP supporters. In the Rajshahi region, unidentified assailants wearing masks or helmets have killed three BNP-Jamaat supporters and injured 15 others in the past two months, leaving the police puzzled. A series of attacks by masked individuals targeted opposition members, with nine leaders and activists from the Bangladesh Nationalist Party (BNP) and Jamaat-e-Islami suffering brutal assaults in Natore’s four upazilas over the last month. Some were beaten, others hacked, and some even shot by these unknown attackers. (Attacks on BNP-Jamaat men: Of masks, helmets and baffled cops, The daily Star, 22 November 2023; Natore: Masked miscreants launch series of attacks on opposition men, Prothom Alo, 14 November  2023). A millions dollars question is why are only opposition parties the victims of these masked attackers? Do these actions align with the principles of the constitution?

Armed Supporter at GAZI Golam Dastagir’s Nomination Submission: A Snapshot from Prothom Alo (30 November 2023).	Meet Noory, a victim of political persecution in Bangladesh. Her dad supports the opposition in Bangladesh, hiding from trouble. Police took her mom hostage to pressure him. Noory’s left crying without both parents. Picture from Social media.

2024 Election Outlook: Prospects Under So-called Constitutional Framework

Ignoring the concerns and calls for a free, fair, and participatory election by the international community, including the USA, EU, United Nations, and Human Rights Watch, the ruling party in Bangladesh is proceeding with the election under the so-called constitution, as they claim. It’s noteworthy that Awami League, BNP, and Jatiya Party are the major political parties in Bangladesh, previously alternating in power. Another semi-major party, Jamaat-e-Islami, did not form the government but had a significant impact on winning seats and forming coalition governments. However, Jamaat-e-Islami’s registration has already been canceled during the current regime, blaming their involvement in the 1971 liberation war, which categorized them as against the liberation. Jatiya Party is losing popularity due to its questionable coalition with Awami League and the death of the founding leader H M Ershad. The party is now facing a major leadership crisis between Ershad’s wife and brother. Despite their declining popularity, they still hold influence in elections, especially in the northern part of Bangladesh if the election is fair. Since they were allies of Awami League before, their participation in the election does not signify true participatory elections. For the election to be participatory, the involvement of the BNP is crucial. Without their participation, voters are likely to abstain from the poll center. However, if the election is free and fair, BNP could potentially secure a regime change, something undesirable for Awami League. Even if the BNP decides to participate, ruling party supporters, along with government forces, are expected to intensify their efforts to suppress the BNP. Therefore, BNP’s non-participation would turn the election ground into a one-sided contest, confirming Awami League and its allies’ victory in all 300 seats. The nomination from Awami League (Symbol: Boat) indicates a high probability of winning the seat. Many Awami leaders in parliamentary seats express interest in receiving nominations from Awami League, with an average of 11 candidates applying for nomination and the boat symbol in every parliamentary seat. However, practically,  a single candidate gets nominated in each parliamentary seat of any party, meaning one candidate will be considered for nomination by Awami League to hold the symbol boat.  Those who are not nominated can still stand as independent candidates, but they will lose their party membership as per political party regulations. Additionally, Awami League offers minor parties the chance to participate in the election by sharing some seats. It’s noteworthy that numerous political parties in Bangladesh sometimes fail to win any seats despite having a very low number of voters. For instance, Kalyan Party, formed by retired Army General Ibrahim, had only 0.03% of the vote in the last 2018 election. Still, the ruling party has offered them some sharing seats if they participate in the election. Similarly, ruling parties might attempt to fragment major parties like BNP into smaller ones and offer them sharing seats, as seen with Trinamool BNP and BNMP, newly formed with politicians who separated from BNP.  Even Awami League offers candidature with the boat symbol! The notable example of this strategy for the 2024 election is the candidate Barrister M Shahjahan Omar. He was BNP’s vice chairman and was arrested on multiple charges, in what appears to be an ill-motivated political case. However, he was released from jail through the recommendation of the ruling party. After his release, Shahjahan Omar joined the Awami League just a day later. He submitted a nomination form as an AL candidate from Jhalakathi-1 constituency. Shahjahan Omar, now the Awami League-nominated candidate for the Jhalakathi-1 (Kanthalia-Rajapur) constituency, attended a party rally in the town, where his supporters were seen holding guns (Accompanied by armed BNP men, Shahjahan Omar attends AL rally, Dhaka Tribune, 4 December 2023). It is questionable whether holding a gun in an election campaign is constitutional.

It is allegedly rumored that minor parties are negotiating to share a certain number of seats; for example, Jatiya Party demanded 50 seats, Kalyan Party demanded 10 seats, and Trinamool BNP demanded 3 seats. The plan seems to be securing parliamentary seats through negotiations before the election and then staging a drama on polling day to legitimize it. While Awami League has offered these so-called political parties the chance to share a few seats, they have already declared nominated candidates for all 300 seats, leaving little room for these minority parties. As a result, there is a risk of them withdrawing their candidature before the confirmation date. If this happens, all 300 seats or most of them may be declared selections (no election needed due to the absence of multiple candidates). Such an outcome would not be accepted as a participatory election by the public.

To address this, the Prime Minister has taken a strategic move by declaring that nominated candidates must contest with independent candidates, defined as “dummy candidates” by the Prime Minister (Sheikh Hasina suggests alternative candidates to prevent uncontested wins, Prothom Alo, 27 Nov 2023). Although there are provisions for losing party membership for independent candidates, Awami League has issued a notice stating that their party membership will not be voided. These dummy candidates are essentially ruling party leaders participating in the election without Awami League’s nomination. The trick employed by the ruling party serves multiple purposes: 1) if a dummy candidate (not nominated by Awami League) wins, they can join Awami League to form the government; 2) the ruling party can claim the election was free, fair, and participatory as an independent or dummy candidate won; 3) dummy candidates may win based on their popularity; 4) the election could potentially be manipulated to make dummy candidates win and demonstrate the fairness of the election; 5) even if a dummy candidate wins, it doesn’t incur any loss for the ruling party. This sums up the election scenario, where the ruling party, Awami League, is essentially competing with itself — those who are non-nominated candidates or dummy candidates. It’s a win-win situation, illustrating the Awami way of organizing a participatory, free, and fair election under the Awami constitution, where election day is more of a theatrical stage, and the outcome is already confirmed.

In conclusion, the election scenario in Bangladesh is marked by allegations of manipulation, with the ruling party, Awami League, employing various tactics to secure victory. The rumored negotiations with minor parties for seat-sharing, the introduction of dummy candidates, and the potential withdrawal of candidates raise concerns about the legitimacy of the upcoming election. Instances of Awami League candidates submitting nominations with armed supporters and using police to target opposition supporters further raise questions about the fairness and adherence to constitutional principles. The observed actions, including armed motorcades and door-to-door searches for opposition supporters, create doubts about whether these practices align with the principles of a democratic and constitutionally sound electoral process. In a word, the election is shamelessly rational with a number of unconstitutional events.

Dr. Md Nurul Amin, PhD in Life Science, Aquaculture Technical Officer, IMAS, University of Tasmania, Australia.